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Handling SSDI & SSI Claimsfrom Application through Appeal
The Clark County Bar Association Twenty-Fifth Nuts and Bolts Lecture Series Presents:
Place logoor logotype here,
otherwisedelete this.
I slept and I dreamed that life is all joy. I woke and I saw that life is all service. I served and
I saw that service is joy.
Khalil Gibran (some famous guy)
Practicing social security law is one of the most honorable things you can do as a lawyer.
Alan Stuart Graf, Esq. (disability attorney and mentor to many)
Melissa Kenney, Esq. and Lisa Porter, Esq.
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Practical Considerations
You cant help others
if you work like a luftmensch.- paraphrase of a grandmas sage advice
Organization and
Publishing Websites
Social Security Administration:
www.SSA.gov
Really Useful Pages at SSA.gov:
http://www.ssa.gov/appeals/best_practices.html
http://www.ssa.gov/representation/http://www.ssa.gov/representation/fee_agreements.htm
National Organization of Social
Security Claimants Representatives,
www.nosscr.org
James Publishing Pretty much the
go-to source for many
http://www.ssas.com/
WA Organization of Social Security
Claimants Representatives (listserve
currently run by Rosemary
Schurman, Esq. 425-821-8577,www.schurmandisabilitylaw.com
Melissa Kenney, Esq. and Lisa Porter, Esq.
**Luftmensch (Yiddish)(n.):
An impractical dreamer,
with no business sense. Literally, airperson.
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Practical Considerations
Contingency-based practice; fees set by SSA. Success up to Appeals Counsel level pay 25% and capped at
$6,000 total.
SSI and SSDI cases take approximately 1 and years frominitial application to hearing determination.
Appeals level decisions may take another 3 to 5 years ormore.
Plan for income stream accordingly.
Websites by
Practitioners
Alan Stuart Graf, Esq.
http://www.hippielawyer.com/
Alan Stuart Graf, PC316 Second Rd.
Summertown, Tn 38483
(931) 964-3123, Fax: ((31) 964-
3127, email: [email protected]
*NOTE: Alan mentioned his
websites page may be a bit
outdated, so contact him if
questions.
Eric Schnaufer (good Federal case
list)
http://schnaufer.com/
Charles Martin, Esq., Martin and
Jones
http://www.theatlantadisabilitylawy
er.com/about-us/
Also see the SSL national listservehe runs:
http://lists.theombudsman.com/listin
fo.cgi/ssl-theombudsman.com
Melissa Kenney, Esq. and Lisa Porter, Esq.
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SSI and SSDI:
Supplemental Security Income (SSI): Also known as Title
XVI, this program provides benefits for aged, blind, and
disabled people without regard to prior workforce
participation. It is administered by the Social Security
Administration, but it is not funded by Social Security taxes.
Social Security Disability Insurance (SSDI): Also known
as Title II, this program provides benefits to disabled/blind
persons who are insured by workers contributions to the
Social Security trust fund. These contributions are based on
work earnings (a client, her or his spouse or parents) as
required by the Federal Insurance Contributions Act
(FICA). Title II of the Social Security Act authorizes SSDI
benefits. Dependents may also be eligible for benefits froma clients earnings record.
Basic Differences between the two.
Melissa Kenney, Esq. and Lisa Porter, Esq.
The Dalles OR SSA office. We liked the pupdog.
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From Application To Hearing
Melissa Kenney, Esq. and Lisa Porter, Esq.
INITIAL
APPLICATION
Done by claimant,not attorney. Takes2 to 6 mos fordecision. Over70% claims
rejected at thislevel. Sixty daysfrom rejection torequestreconsideration ofthe initialdetermination.
RECONSIDERATION
Recommendedclaimants hireattorney at thisstage. Takes another2 to 6 months fordecision. Over 65%claims rejected athis level. Sixty daysfrom rejection torequest hearingreview by ALJ. H
EARING
LEVEL
Up to one year ormore wait forhearing. Informalprocess: Some rulesof evidence arerelaxed, hearsay oruse of leadingquestions arepermitted withinreason. Likelihoodof claim approvalsignificantlyincreases withrepresentativeassistance.
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Melissa Kenney, Esq. and Lisa Porter, Esq.
Initial application Claimants file own disability applications with Social Security. Social Security Administration contracts with state Department of Disability Services to begin
disability determination process. Wait time about 2 to 4 months for decision. Most attorneys do not represent claimants at this stage.
Claimants sometimes hire legal counsel at this stage. When denied at initial stage, appeal of decision must be filed within 60 days of the denial
date.
Clients may be provided a medical, psychological, or vocational consultative examiner to
assess disability. Wait time about 2 to 4 months for decision.
Reconsideration
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Intake InterviewHow to evaluate a clients claim for disability.
Melissa Kenney, Esq. and Lisa Porter, Esq.
Were guessing she might not be too disabled to work.
Phone screening tool Whatprocedures will you use?
Intake evaluation interview formshelp!
Mind the gaps using the five stepsequential evaluation process
(following this slide).
Other factors that can affect a case include: (1) Onset Date; (2) Unsuccessful Work Attempts; (3)
Working Claimants; (4) Prior Applications; (5) SSA Misinformation Deters Applying; (6) Receipt
of Unemployment Compensation Benefits; and (7) Americans with Disabilities Act Claims.
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Potential New Client Intake
1. Is claimant working?
2. Does claimant have a severe impairment?
3. Is claimants condition found in SSAs Listing of Impairments (the
Listings)?
4. Can claimant do past relevant work?
5. Can claimant do any other type of work?
Keep in mind the Five Step Sequential Evaluation Process and Required Elements.
Melissa Kenney, Esq. and Lisa Porter, Esq.
We will come back to Five Step Sequential Evaluation Process shortly.
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Imperfect Client Case
Work to encourage client to discuss drug
and/or alcohol abuse honestly, particularly
if in medical record.
If possible, work with client and treating
provider to get into DAA treatment need
approximately 30 days documentedsobriety to see if DAA is MATERIAL to
the case.
If client has physical problems only, DAA
should not be material to client case unless
abuse causes physical problem.
Some issues, like present drug/alcohol abuse, or refusal to seek treatment, can hurt.
Melissa Kenney, Esq. and Lisa Porter, Esq.
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New Client. Now What?
If reconsideration denied, file Request For Hearing within 60days of denial date.
Hearings are held before Administrative Law judges. This is the stage where most attorneys commonly become
involved in a case.
OHA sends letter confirming request for hearing; about 9 to
12 months will pass before a hearing is scheduled.
Procedures and Deadlines to Remember.
Melissa Kenney, Esq. and Lisa Porter, Esq.
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Want To Get Paid?Doin Bidness wit da Govment specific forms and paperwork needed to represent.
Melissa Kenney, Esq. and Lisa Porter, Esq.
1695 and 1696s(make sure your 1699 is correct)
Fee Agreements
827s HIPAAs and otherauthorizations to obtain
records
Possible fee petition (oh no!)
Grumpy Cat
Hates Forms
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About Ten Months Later
Claimants will receive another questionnaire
from the Office of Hearings and Appeals
(OHA) entitled "Claimants Questionnaire."
This questionnaire arrives about 2 to 4months prior to a claimants hearing.
This is the time to schedule a meeting with
the client to update medical records and find
out if any new developments have occurred.
Not a hearing Even better: Its another form!
Melissa Kenney, Esq. and Lisa Porter, Esq.
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Evidence, Evidence, Evidence!
Most recent medical andPsychological records
Residual function capacity
opinions from treating providers Vocational assessments Former Employer statements Witness statements
(Or, What You Need For Your Claimant To Succeed.)
Melissa Kenney, Esq. and Lisa Porter, Esq.
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Medical Evidence NOT Optional
Ask clients to gather their ownmedical records if possible.
Create a template residual
capacity form for doctors andpsychologists to use.
Do NOT have clients ask theirmedical or psychological
providers to write a letter on
their behalf.
While it is possible to win with little medical evidence, evidence makes a clients case.
Here are some key tips in gathering needed evidence from providers.
Melissa Kenney, Esq. and Lisa Porter, Esq.
Contrary to some opinions, medical professionals are human.Some even get irritated by the same things that you might getirritated by. We have even found interesting terms in medicaldictionaries! Nonetheless, when reviewing client medicalevidence, if you find any of interesting terms, such as the onesbelow, you may want to contact the provider to ask for a more,ahem, *appropriate* term:
1. PRATFO2. AMYOYO Syndrome3. Faecal Encephalopathy4. SBI or SWAG5. Polydipose Dysfunction
6. Brothel Sprouts **in the case of this one, you may wantto keep this
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But not just any medical evidence
20 C.F.R. 404.1513(a) and (e), 416.913(a) and
(e).[14] Acceptable medical sources specifically
include licensed physicians and licensed psychologists,
but not nurse practitioners, mental health counselors,
chiropractors or other non-doctor practitioners.
404.1513(a)(1) and (3); 416.913(a)(1) and (3).
However, a nurse practitioner or any other practitioner
working either as part of an interdisciplinary team or in
conjunction with a physician or psychologist
constitutes an acceptable medical source. Gomez v.
Chater, 74 F.3d 967, 971 (9th Cir. 1996).
Long-term Treating Sources Opinion Matters Most.
Melissa Kenney, Esq. and Lisa Porter, Esq.
Unless treating provider is Dr. Riviera
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Hearing scheduled!
Schedule prehearing appointment with clientto update for any changes.
Make sure all medical records, witnessstatements, and other records are submitted.
Contact medical providers willing to give anRFC disabling levels of pain are
particularly difficult to translate into
limitations in hearings.
*Currently, a pain chart is one of a small
number of methods available to determine apersons experience with pain.
Hearings are scheduled about two months in advance. Heres whats next:
Melissa Kenney, Esq. and Lisa Porter, Esq.
(Is there a level called big whiny baby?)
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Hearing Day - Finally.
Weve encountered the full range of ALJ behavior and prejudices.
Very similar cases before two separate judges often have radically
different outcomes. It is a truism that practitioners will often
correctly predict the expected outcome based on the particular ALJ.
That being said, the hearing procedure is fairly predictable.
Hearing lasts about one hour.
Testimony taken under oath.
ALJ follows 5 Step Sequential Process.
ME testimony for steps 2 & 3; VE testimony for steps 4 & 5
Average 1 & Year Wait. What to expect at a hearing
and what often ACTUALLY happens.
Melissa Kenney, Esq. and Lisa Porter, Esq.
Mirac le in t he A lcoho l A is le .
The ALJ shops here too
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Hearing Process: First 20 mins
Swearing in client and expert witnesses (medical, psychological, and vocationalexperts present).
Opening statement, if preferred.
ALJ or you only start with questions to client. Step 1: Current or recent orSGA work?
ALJ or you follow up initial questions with clarifying questions.
Hearsay is permitted, questions can be leading, but to preserve client testimony
as truthful, the fewer leading questions, the better.
Witnesses are often brought in after.
Who goes first? Do I have an opening statement? What if the ALJ takes over?
Melissa Kenney, Esq. and Lisa Porter, Esq.
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Hearing Process: Next 20 mins.
Step 2: Does Client have a severe impairment?
Step 3: Is Clients condition found in SSAs listing of
impairments (and what evidence in record supports this?)?
The ME then testifies if the Client meets or equals the
listings, and provides testimony as to if symptoms from the
impairments cause mild, moderate or marked
impairments.
They also testify to whether drugs and/or alcohol abusecontribute to the disabling conditions.
Expert Witness testimony How to cross-examine MEs.
Melissa Kenney, Esq. and Lisa Porter, Esq.
Hopefully MEs will never testify
about the disabling effects of darkchocolate abuse.
Medical and psychological experts provide testimony about steps 2 and 3 in the 5 stepsequential evaluation process.
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Hearing Process, Final 20 mins
Vocational experts provide testimony about steps 4 and 5 of the sequential evaluation
process.
Client has the burden of proof from steps 1 to 4 to show disabling condition exists.
Claimants only need show a preponderance of the evidence to prove a disabling condition
exists.Client has to prove she does not have the RFC to return to any past jobs. SSR 82-62. This
burden is met by establishing at least one requirement of each of past relevant jobs can no
longer be done. The VE testifies as to the requirement levels needed at your clients past
jobs. If the ALJ doesnt ask, you should.
SSA has the burden of proof at step 5 at a substantial evidence level - to show there arestill jobs available for a person with limitations such as your Clients.
Expert Witness testimony How to cross-examine VEs.
Melissa Kenney, Esq. and Lisa Porter, Esq.
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Hearing is done. What next?
If no bench decision, or ALJ informing you and
your client that a favorable determination will be
issued, your client will wait about 30-60 days for
the determination letter.
If favorable, hooray!
If unfavorable, next avenue is to determine
whether your client should undergo the appeals
route or start a new claim.
If lucky, a bench decision that day. Otherwise, determination issued 30-60 days later.
Melissa Kenney, Esq. and Lisa Porter, Esq.
What? Its only $687 a month???
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Melissa Kenney, Esq. and Lisa Porter, Esq.
Appeals Counsel, USDC and beyond
Appea
ls
Counse
l(AC)
Last level ofappeal at theAgency level.Need to file within60 days. Takes upto a year or morefor decision.
Success ratesrange from 12% to20% at this level.
Medical evidencemay continue to besubmitted.
Fe
dera
lD
C(
USDC) File for appeal.New medical
evidence may notbe submitted unless a case issueis that the ACLevel refused to
evaluatenew/materialevidence and thatsuch evidencecontinues to beignored. Takes up
to a year or morefor decision.
Federal
Circuit
Both USDC and9th Circuitfrequently remand
for repeat hearingat Agency level toanswer a questionimproperlyignored.
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Typically Appealed Issues
One good source has a basic outline of procedural issues that can happen at federal court:http://www.theatlantadisabilitylawyer.com/procedural-hurdles-in-district-court/
Some representative appealable issues:
Impairment not correctly evaluated as severe, incorrect weight given to treating providers,
mental limitations provided by a non-examining doctor given more weight than by the treatingprovider; does not evaluate the effects of obesity on claimant; in error gave little/no weight to
witnesses; the evidence does not establish DAA is material, ALJ made an incorrect RFC which
rendered the vocational experts testimony flawed.
If you feel your clients case should not go on to USDC, but your client objects, here is a link
on how to self-represent at USDC: http://ord.uscourts.gov/en/pro-se-resources/representing-yourself-in-court (from Tim Wilborn,http://www.wilbornlaw.com/)
What a surprise! ALJs make usual mistakes in the sequential evaluation procedure..
Melissa Kenney, Esq. and Lisa Porter, Esq.
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credits
Picture of car-lifting partier:
http://www.cracked.com/article/114_5-superpowers-
you-didnt-know-your-body-was-hiding-from-you/
Memes from www.quickmeme.com, www.xkcd.com,
Know why theres so many meme-worthy comics onthis presentation? The answer is right here
Stay healthy during the flu season, and contact us if
you have any questions about SSA practice.
KP Law, LLC.
www.kpdisabilitylaw.com, Like us on Facebook:
www.facebook.com/kplaw.disability.Presentation found on Scribd.com.
Thank you to OWLs , and to our wonderful mentors and friends who inspire us.
Melissa Kenney, Esq. and Lisa Porter, Esq.